Robert Lee v. PeopLease Corporation

The award and decision of Administrative Law Judge Karen Fisher, issued April 27, 2012, is attached and incorporated by this reference.

We approve and affirm the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $16^{\text {th }}$ day of May 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

V A C A N T

Chairman

CONCURRING OPINION FILED

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

I write this concurring opinion to voice my agreement with certain of the views expressed by Presiding Judge Gary W. Lynch in the Spradling case. Writing separately, Judge Lynch drew attention to the absurdity of providing lifetime benefits under the Missouri Workers' Compensation Law to the family of an employee whose death has nothing to do with work, where the same family would receive far less compensation if the employee had died as a result of the work injury:

One of the two rationales stated in Schoemehl ... was to prevent the "unreasonable result" of allowing surviving dependents to receive permanent partial disability benefits but not permanent total disability benefits. Schoemehl v. Treasurer of State, 217 S.W.3d 900, 903 (Mo. banc 2007). I write separately to lament that our constitutional obligation to follow Schoemehl, MO. CONST. art. V, § 2 (1945), now requires this Court to affirm what I consider to be the unreasonable result of awarding lifetime benefits to surviving dependents where the employee's death was unrelated to the work injury, when the surviving dependents would have only received benefits during the time of their dependency if the employee's death had been caused by the work injury.

Spradling v. Treasurer of Missouri, SD31907 (April 24, 2013) (Lynch, P.J., concurring) at pg. *15.

Before issuance of the Spradling decision, I was of the belief that Gervich v. Condaire, Inc., 370 S.W.3d 617 (Mo. 2012) and White v. Univ. of Mo., 375 S.W.3d 908 (Mo. App. 2012) provided ample authority for reading $\S 287.240(4)$ RSMo in such a way as to prevent the unreasonable result identified by Judge Lynch. But in light of the holding in Spradling, which I agree is dispositive of the issue whether the divestment provisions under § 287.240(4) are applicable to an award of Schoemehl benefits, I must reluctantly join in the decision to affirm the administrative law judge's award of lifetime permanent total disability benefits to employee's dependent.

James Avery, Member

Hearing Date: January 20, 2012

Checked by:

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: February 7, 2006
5. State location where accident occurred or occupational disease was contracted: Noble, Illinois
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant injured his back as the result of falling from a truck.
12. Did accident or occupational disease cause death? No. Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Lower back
14. Nature and extent of any permanent disability: Settled as to Employer/Insurer. PTD as against the Second Injury Fund.
15. Compensation paid to-date for temporary disability:
16. Value necessary medical aid paid to date by employer/insurer? None.
17. Value necessary medical aid not furnished by employer/insurer? N/A

1. Employee's average weekly wages: $\ 775.88
2. Weekly compensation rate: $\$ 517.25 / \ 365.08
3. Method wages computation: By stipulation.

1. Amount of compensation payable: Settled as against Employer and its Insurer.
2. Second Injury Fund liability:

For accrued permanent total disability benefits,

The sum of $\ 152.17 for 60 weeks, and the sum of $\ 517.25 for $2052 / 7 weeks

TOTAL: \ 115,314.23

1. Future requirements awarded:

Beginning January 20, 2012and continuing for the remainder of Cynthia Lee's life, the Second Injury Fund shall pay $\ 517.25 each week as permanent total disability benefits.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: John Wise

Employee: Robert G. Lee (deceased)

Injury No. 06-021233

Dependents: Cynthia Lee - sole dependent \& substituted party

Employer: PeopLease Corporation

Additional Party: Second Injury Fund

Insurer: Insurance Co. of State of Pennsylvania

Hearing Date: January 20, 2012

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

The undersigned Administrative Law Judge conducted a final hearing in this case on January 20, 2012, in Joplin, Missouri. The claim against the employer and its insurer settled prior to the hearing. The hearing was held to determine the extent of any liability against the Second Injury Fund. Attorney, John Wise, appeared with his client, Cynthia Lee (claimant). Assistant Attorney General Todd Smith represented the Treasurer of Missouri as Custodian of the Second Injury Fund of Missouri.

The parties stipulated that Claimant sustained a work related injury while employed by PeopLease Corporation on February 7, 2006. Claimant was a covered employee at the time of the injury and his employer was subject to the workers' compensation law. The parties further stipulated that the contract of hire was entered into in Mount Vernon, Lawrence County, Missouri. Thus, jurisdiction is proper. Claimant's average weekly wage was $\ 775.88, yielding a permanent partial disability rate of $\ 365.08 and a permanent total disability rate of 517.25 . There is no dispute as to notice, statute of limitations, venue, or course and scope of employment.

The parties agree that the sole issues are whether the Second Injury Fund has any liability and the extent of that liability. Claimant's attorney, John Wise, also seeks an attorney fee of 25 percent.

The following exhibits were admitted on behalf of Claimant:

A. Stipulation for Compromise Settlement 06-021233

B. Stipulation for Compromise Settlement 02-055352

C. Order substituting Cynthia Lee as claimant in place of the deceased employee, Robert G. Lee

D. Marriage Certificate

E. Deposition of Robert Lee

F. Deposition of Dr. Robert Paul

G. Medical Records - Bridges Medical Center

H. Medical Records - St. John's

I. Medical Records - Dr. Hish Majzoub

J. Medical Records - St. John's

K. Medical Records - Doctors Hospital

L. Medical Records - St. John's

M. Medical Records - St. John's Spine

N. Curriculum Vitae - Phillip Eldred

O. Report - Phillip Eldred

The follow exhibit was admitted on behalf of the Second Injury Fund:

Deposition of Dr. Daniel Kitchens

Robert Lee (Employee) died on June 12, 2011, at the age of 50 years. The Certificate of Death reflects that Mr. Lee died from causes unrelated to his occupational injury of February 7, 2006. That document reflects that he passed away from cardiac arrest and possible cardiac arrhythmia. An order substituting as claimant his surviving spouse, Cynthia Lee, was signed by Administrative Law Robert House on July 9, 2011.

Ms. Lee testified at the hearing in this matter. She testified that she and Mr. Lee were married on April 30, 1987. She confirmed that he passed away from causes unrelated to his occupational injury. Ms. Lee was married to Mr. Lee continuously from April 30, 1987 to June 12, 2011, the date of his death. She confirmed that she was married to him on the date of his occupational injury, February 7, 2006.

Ms. Lee also testified that she and Mr. Lee had one child, who did not survive infancy. She testified that no one, other than herself, was dependent on Mr. Lee for support as of February 7, 2006, the date of his death, or anytime between such dates. Mr. Lee was deposed by Elijah Haahr, counsel for employer and insurer, and Christina Hammers, counsel for the Second Injury Fund, on April 1, 2009. A transcript of that deposition testimony was admitted into evidence.

Mr. Lee completed the $11^{\text {th }}$ grade and obtained a GED in 1979. He attended no formal education after high school other than plumbing school and truck driving school. Mr. Lee